3. International Praise and Lingering Concerns
The British and American press generally praised the 2004 Mudawana reforms. For example, Giles Tremlett stated, “Morocco has approved one of the most progressive laws on women’s and family rights in the Arab world . . . .” Other commentators focused on the reaction of women’s rights organizations, stating, for example, that “[s]everal women’s associations called the reforms a ‘victory’ for Morocco and evidence of a strong political will to end the injustice toward Moroccan women.” Still other commentators focused on the increased rights for children, writing that “[t]he new code—the result of a decade of effort—has been heralded as not only a giant leap in women’s rights, but also a huge advance in children’s rights.”
The 2004 Mudawana reforms are a strong expression of women’s rights. As discussed above, these reforms strengthen women’s rights in numerous ways and use various legal methods to express these rights. Of course, these reforms are not perfect. As Robin Wright notes, “Moroccan women still face[] serious disadvantages.” Wright argues that access to information is the largest problem, and that many women are not aware of their rights under the new code. Further, she argues that high illiteracy rates among rural women, judges who fail to apply the new code through negligence or obstruction, and familiesthat adhere to the old code add to the disadvantages women face.
Similarly, Weingartner notes that women still face serious problems despite the reforms. She lists four main concerns: “1) adequacy of formation of judges and functionaries to implement the reforms; 2) investment in education of the public at large regarding the reforms; 3) inherent injustice of polygamy in any case; and 4) remaining perception of ambiguities regarding divorce and child custody.” Weingartner characterizes the first two concerns as procedural and argues that a largely male judiciary susceptible to corruption and an illiteracy rate as high as eighty-five percent among rural Moroccan women create significant implementation problems.136 Accordingly, the Moroccan government must train judges in the reformed code and be willing to sanction judges that do not follow these laws. To its credit, the Moroccan government created an extensive education campaign to inform the public of the changes to the Mudawana, using the media and public meetings at schools and mosques to spread the message. Weingartner characterizes the last two concerns— polygamy and divorce—as substantive. Here, her criticism seems somewhat unfounded. For one, it is difficult to imagine a better solution to polygamy that would not contradict Islamic law since this legal provision has direct Qur’anic support and cannot simply be disregarded or amended. Likewise, while the numerous provisions and vague language regarding child custody are regrettable,
these reforms do extend substantial legal protections to women and children. Some commentators argue that customary law may impede the implementation of the Mudawana reforms. Shana Hofstetter describes how customary law can reinforce gender inequality.139 As an example, she notes that customary law can undermine microfinance loan programs in developing countries.140 Referring to the Mudawana, she states that “traditional gender roles in Islamic customary law, and not inequity in the legal code, restrict these businesses.” Hofstetter notes that the application of the reformed Mudawana also raises gender equality concerns: “Moroccan judges may be unwilling to apply the new law as it is written.”142 She also recalls the demonstrations opposing the reforms: “Islamists in Morocco held massive demonstrationsagainst the reform and the new law was not welcomed in all of society.” Finally, Hofstetter notes that custom may impede gender equality despite the formal equality in the reformed Mudawana: “[i]n practice . . . men rarely take on household responsibilities because it is considered shameful and part of the wife’s obligations toward marriage.” To correct these issues, Hofstetter recommends creating a public education campaign so that women, particularly in the rural areas where women are largely illiterate, can learn of their new rights.
While concerns over implementing the new code are valid, social and cultural battles between tradition and reform often play out in the legal setting. This is a criticism not of the Mudawana reforms, but a question of whether Morocco’s overwhelmingly male judiciary will apply the reformed code correctly. Given the king’s strong support, it is reasonable to expect substantial adherence to the new code. As such, a note of cautious optimism is also reasonable.
Wright and Weingartner each reach a similar cautiously optimistic conclusion, finding the Mudawana reforms a strong step forward for advancing women’s rights in Morocco and serving as an example for women’s rights supporters in other Islamic states. Weingartner emphasizes how the reforms balance adhering to Islamic law and advancing women’s rights:
In Morocco, where the dual goals of modern, progressive democratic development, and adherence to Islamic ideals as a source of law coexists, the reformed Mudawana may well be received as the best, although imperfect, example available today of modernist Islam benefiting women, their husbands and children, indeed society as a whole.
Wright offers perhaps the most satisfying conclusion, characterizing the Mudawana reforms as a beginning and not an end in the advancement of women’s rights in Morocco.